Virgin Queen meets broadband: a third way for net neutrality

Still looking for consensus, FCC Chair Julius Genachowski refuses to pick one …

After ping-ponging between the hard-edged Protestantism of Edward VI and the resurgent Catholicism of Mary I, the Anglican church settled into a via media of sorts under Elizabeth I, whose primary goal was not doctrinal purity but national unity. By allowing for shades of grey, Elizabeth hoped to keep the forces of "black and white" from turning England red.

FCC Chair Julius Genachowski is on a similar mission. Today he announced the details of his long-awaited decision to implement open Internet rules in the wake of the agency's court loss in the Comcast case. Rather than continue under an uncertain legal framework or impose a full suite of "common carrier" telephone regulations on ISPs, Genachowski is determined to chart his own via media (which he calls a "third way") through the net neutrality war.

A broad church

For Elizabeth, the instrument of her imposed compromise was a new version of the Book of Common Prayer, one that remained in widespread use for hundreds of years. Genachowski's compromise document—a soon-to-be-issued-if-the-votes-are-there request for public input—will no doubt make for less compelling reading, but it has a similar goal: bring everyone involved into a big tent.

The chairman outlined his vision for a "third way" today (PDF) in a lengthy statement, one not notable for rhetorical subtlety. Genachowski is at pains to argue that there is a "consensus understanding" of how the FCC should regulate broadband. This consensus is bipartisan, carefully balanced, and "light touch" in nature. It is, in essence, not controversial.

Genachowski will propose moving broadband access under Title II of the Communications Act, which has long been used to regulate telephone service as a "common carrier." Adopting all of these provisions would have "serious drawbacks" for the Internet, so the FCC would use its extensive "forbearance" authority to preemptively keep such provisions off the table.

Indeed, FCC general counsel Austin Schlick issued a statement of his own today (PDF) in which he argued that the full 48 provisions found in Title II were unnecessary; the FCC could do the job it wanted with a mere six provisions.

Those provisions would "collectively forbid unreasonable denials of service and other unjust or unreasonable practices, and allow the Commission to enforce the prohibition," said Schlick. (These are Sections 201, 202, and 208, if you're curious.)

Section 254 would help promote universal service goals, Section 222 would force ISPs to "protect the confidential information they received in the course of providing service," and Section 255 says that service providers must "make their services and equipment accessible to individuals with disabilities, unless not reasonably achievable." That's it.

Everything else in Title II, including government rate regulation, would be off the table, and Schlick pledges that the new classification regime would not force ISPs to do any additional "unbundling" of their lines.

Genachowski Seems to believe that his "third way" can actually bring all parties on board, including the ISPs, perhaps even avoiding a drawn-out court battle over reclassification. Throughout his statement, the Chairman emphasizes that his approach is "narrow," that it would simply "restore the status quo," that it would have "meaningful boundaries and constraints to prevent regulatory overreach," that the initial decisions to call broadband access a Title I service were really the "controversial" ones, and that the FCC plan is "modest."

ISPs are unlikely to see things this way.

Everyone's a critic

Comcast has already sent us a statement expressing disappointment with the FCC decision, though the company does say that it is ready "to work constructively with the Commission to determine whether there is a 'third way' approach" that works.

But Genachowski's paean to moderation and "healthy return on investment" isn't securing broad tent support from the small-government think tank community. Not having to conduct their own business with the FCC, these groups are more likely to say exactly what they think than are companies like Comcast.

Here's what they think. The Technology Policy Institute says, "The ‘Third Way’ approach FCC Chairman Genachowski outlined this morning is, despite claims to the contrary, regulating the Internet as well as a sharp departure from the status quo. The status quo is the light-handed regulatory approach under which the Internet has grown and thrived over the past decade. Maintaining the status quo requires doing nothing."

And the Free State Foundation was just as irritated: "Despite Chairman Genachowski's rhetorical nods towards not regulating Internet services in a heavy-handed manner, the reality is that his 'third way' is the wrong way... The 'third way' is the 1980s way of regulating telephone companies—but the Internet is a 21st century phenomenon."

Genachowski can't even get the full agreement of fellow Democrat Commissioner Michael Copps, who said today, "Frankly, I would have preferred plain and simple Title II reclassification through a declaratory ruling and limited, targeted forbearance—wiping the slate clean of all question marks."

As Elizabeth found out, the costs of a via media were constant carping from both low-church Protestants and high-church papists. Unlike Genachowski, though, she could sack noncompliant bishops and call out the army when things got too hot. Today's FCC will have to content itself with cajoling and litigation.

30 Reader Comments

But Genachowski's paean to moderation and "healthy return on investment" isn't securing broad tent support from the small-government think tank community. Not having to conduct their own business with the FCC, these groups are more likely to say exactly what they think than are companies like Comcast.

Here's what they think. The Technology Policy Institute says ...

And the Free State Foundation was just as irritated: ...

Who funds "The Technology Policy Institute" and the "Free State Foundation", I wonder?

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297944A1.pdf (page 5)Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that,prior to the Comcast decision, were widely believed to be within the Commission’s purview forbroadband;

None of those provisions give the FCC authority to stop the use of QOS or traffic partnerships. Meanwhile, the rest of the NN talking points (website blocking, censorship, etc.) were covered under Title I. So, how's this third approach appease any of the NN lovers?

Well, as I recall, there was a lot more competition in the telecom industry in the 1980s. I don't see a problem. But frankly, I'd have preferred they go the other way, and force unbundling and nothing else. Let's see how well these lumbering behemoths of bad service do in truly free market.

201 and 202 give the authority to the FCC to adopt rules forbidding QOS arrangements if it determines they are unreasonable.

And what provisions in Title I are you talking about? More precisely, what provisions in Title II, III, or VI would forbidding blocking websites be directly ancillary to? The whole point of *Comcast* was that Title I confers no independent regulatory power.

I actually think the "third way" is close to the right way, but I think we're still letting the RIAA, MPAA and the ISPs get off easy: there's stillnothing forcing them to show BURDEN OF PROOF and to OBTAIN a subpoena before enforcing three strikes. This let's them circumvent the judicial system.

If they're going to be free of FCC regulation, they should at least be legally responsible for advertising their own throttling and control practises. They need to be open and forthcoming and to be made a public spectacle of when they go out of bounds with their gestapo copyright practices.

It's simply unacceptable that two non-law enforcement groups are able to become ring leaders in enforcing copyright law and also allowed to dictate it's reach and cherry-pick individuals to exploit for outrageous payouts.

Someone has to step in and kick them in the ass and let them know they can't strongarm us anymore. If that's the FCC (which it should be, as the internet IS nothing if not a means of communication) then I say more power to them.

I'm normally firmly on the small government side of an issue, but when you're talking about physical utility infrastructure there's simply never going to be a meaningful market or competition without regulation.

Nate, you've won the "creepiest Ars picture of the year" award, it's no wonder that one is still a virgin.

That would be the work of our creative director, Aurich.

IRC this morning:

[09:45] <nate> Aurich: could i get a listing image with FCC Chair Genachowski's face put into a portrait of Elizabeht I?[09:45] <nate> like, under all her red hair?[09:45] <Aurich> i should document some of these requests

201 and 202 give the authority to the FCC to adopt rules forbidding QOS arrangements if it determines they are unreasonable.

And what provisions in Title I are you talking about? More precisely, what provisions in Title II, III, or VI would forbidding blocking websites be directly ancillary to? The whole point of *Comcast* was that Title I confers no independent regulatory power.

Neither block the use of QOS. I'm sure you could try to spin QOS as discriminatory under Section 202, but then you'd be confronted with the "undue or unreasonable" qualification and lose that argument in court.

It's section 256 that would have given the FCC authority to make NN policies.

This is why you don't begin political negotiations by offering limp-dick compromises: Your enemies will still fight to further advantage themselves and your allies will lose morale. Instead, you polish your cudgel and get ready to crack skulls. After the carnage abates, what you end up with will probably be a compromise position, but it'll be the best one you could've achieved.

Here's what they think. The Technology Policy Institute says, "The ‘Third Way’ approach FCC Chairman Genachowski outlined this morning is, despite claims to the contrary, regulating the Internet as well as a sharp departure from the status quo. The status quo is the light-handed regulatory approach under which the Internet has grown and thrived over the past decade. Maintaining the status quo requires doing nothing."

And the Free State Foundation was just as irritated: "Despite Chairman Genachowski's rhetorical nods towards not regulating Internet services in a heavy-handed manner, the reality is that his 'third way' is the wrong way... The 'third way' is the 1980s way of regulating telephone companies—but the Internet is a 21st century phenomenon."

My problem with these two approaches are that the "status quo" that they are referring to, for the way that the Internet is handled, was classified eight years ago -- and the Internet is a much different beast today than it was back then. Streaming video and VOIP were nowhere as ubiquitous as they are today, and those types of services are what the large ISPs are pushing, and will use their traffic shaping and download cap abilities to allow their solution to be more reliable and cost effective than their competitors. I'm not sure why these people cannot see this or choose to willfully ignore it....

Quote:

and Schlick pledges that the new classification regime would not force ISPs to do any additional "unbundling" of their lines.

If they would have added this part of Title II I would have been very happy...but the ISPs would fight to the death to not have this happen.

Nate, you've won the "creepiest Ars picture of the year" award, it's no wonder that one is still a virgin.

That would be the work of our creative director, Aurich.

IRC this morning:

[09:45] <nate> Aurich: could i get a listing image with FCC Chair Genachowski's face put into a portrait of Elizabeht I?[09:45] <nate> like, under all her red hair?[09:45] <Aurich> i should document some of these requests

Nate, you've won the "creepiest Ars picture of the year" award, it's no wonder that one is still a virgin.

That would be the work of our creative director, Aurich.

IRC this morning:

[09:45] <nate> Aurich: could i get a listing image with FCC Chair Genachowski's face put into a portrait of Elizabeht I?[09:45] <nate> like, under all her red hair?[09:45] <Aurich> i should document some of these requests

This is why you don't begin political negotiations by offering limp-dick compromises: Your enemies will still fight to further advantage themselves and your allies will lose morale. Instead, you polish your cudgel and get ready to crack skulls. After the carnage abates, what you end up with will probably be a compromise position, but it'll be the best one you could've achieved.

Unless the FCC stands it's ground and tells the ISP's to piss off.

RatStomper wrote:

Hell yes, I was just saying to myself, "you know what would really help me grasp Net Neutrality? A bunch of bullshit about some dumb English queen."

This is why you don't begin political negotiations by offering limp-dick compromises: Your enemies will still fight to further advantage themselves and your allies will lose morale. Instead, you polish your cudgel and get ready to crack skulls. After the carnage abates, what you end up with will probably be a compromise position, but it'll be the best one you could've achieved.

Could we please have this tattooed to the forehead of every Democrat in congress? And whispered to them while they sleep? Thanks.

201 and 202 give the authority to the FCC to adopt rules forbidding QOS arrangements if it determines they are unreasonable.

And what provisions in Title I are you talking about? More precisely, what provisions in Title II, III, or VI would forbidding blocking websites be directly ancillary to? The whole point of *Comcast* was that Title I confers no independent regulatory power.

Neither block the use of QOS. I'm sure you could try to spin QOS as discriminatory under Section 202, but then you'd be confronted with the "undue or unreasonable" qualification and lose that argument in court.

How about this section of 201(b) (p. 36 of the act):

Quote:

That nothing in this Act or in any other provision of law shall be construed to prevent a common carrier subject to this Act from entering into or operating under any contract with any common carrier not subject to this Act, for the exchange of their services, if the Commission is of the opinion that such contract is not contrary to the public interest

It pretty clearly gives the commission the authority to prevent contracts between common carriers (ISPs would be standing in for this role) and non-common-carrier entities (some sort of content provider) should those be contrary to the public interest. It seems reasonable to argue that significantly limiting a consumer's ability to access all the content they wish without hindrance, for example if ATT partnered with WB and blocked or degraded access to any and all movie and TV products not from WB, and Insight made a similar deal with Disney, I would be able to watch WB or Disney products, but not both unless I was willing to pay for two ISPs.

and, fwiw, it seems to me upon initial reading that section 202 would only apply if both entities were common carriers, so you wouldn't even get to the argument about 'undue and unreasonable', but would rather lose the case as soon as the judge found out that one of the parties to the contract was not a common carrier.

I'm normally firmly on the small government side of an issue, but when you're talking about physical utility infrastructure there's simply never going to be a meaningful market or competition without regulation.

It's nice when "small government" people have the sense to realize that sometimes "big business" is at least as dangerous as "big government." Personally, I don't even see this as a "small government" issue. This doesn't, realistically, "grow" the FCC in any meaningful way, especially not compared to the spirit of the FCC's mandate. This is just "big business" trotting out their usual rhetoric when they suddenly can't stomp on the little people to make an extra cent on the dollar.

I do love the "1980s way of regulating telephone companies" comment. If anyone thinks that Bell wasn't absolutely out of control and completely damaging consumer and in turn national interests, raise your hand =P Also, who here remembers history? Ma Bell wasn't being "regulated," at least not in the sense we're using when we discuss things like network neutrality. Prior lack of regulation lead to a situation where simple regulation was no longer sufficient remedy. Ma Bell was being charged with antitrust (monopoly) violations. The breakup was a settlement, because Ma Bell was going to lose, badly. It actually lead to a surge in competition... which isn't that what the "capitalism uber alles" camp wants? Oh right, I forgot, "free market" is just a byword for "let corporations skin me alive and then sell me my own skin as a handbag if they want to, I actually believe the crap they force feed me about how much more benign they are than something I can at least vote in" and "when I say competition, I mean let the biggest stomp out the rest, regardless of quality/etc." The government's not perfect by any stretch of the imagination, but it's by far the better alternative to zero regulation. Capitalism with zero market controls only leads to corporate oligarchies, and consumers getting stomped on, and the end of competition. It's strange to hear groups like the GOP talk about the "American dream" and "the little guy having a chance to make it big" and how important competition is when their policies all move towards allowing corporations with throttle holds on their markets to completely stop anyone else from ever achieving that, or even trying. It's stranger still that people buy into it.

I think the ISPs should be welcoming some moderate regulation, before there's a need to look at options beyond the FCC for them as well. When you have localized monopolies of service all owned by giant corporations, who at any point in time can choose to drop service to an area and leave that area without any, choose to not even offer the service being desired by an area and then sue the local government for trying to provide for its populous, or who collude on pricing when one of the other giants has a franchise in the area... hmm. Yes, everything looks peachy for letting big business have its way.

And that's before we even get to the subject of network neutrality, aka "we want to remove your ability to choose to use other internet based services when we provide a competing one, like offering 'internet telephone' while QOS metering your other choices of VOIP providers to the point of being nonfunctional." Oh, riiiiight, fuzzy wuzzy lovey mega-corporations just want to do things like throttle your illegal torrents (and they're magically going to ONLY throttle the illicit ones, not the legal ones... oh, you didn't realize how much content you use legally is torrented, like official game client downloads, "media boosters," etc). Yes, I have a bridge to sell you too, if you think that's what this is really about. Wait, when you paid for service it said you got so many MB/s down and up? Well, umm... that only applied to... umm... just shut up and keep paying out the nose. Switch services? We bought them, and them too. Our only competitor locally charges the same amount, strangely, and is a franchise of another mega-corporation that will also throttle and filter your traffic. Won't you buy our Internet Telephone Service now that your VOIP no longer works? Don't mind our DPI, we're not selling your information... really, you can trust us.

Because, if we're all going to be honest, that's all this is about. ISPs wanting to leverage anticompetitive monopoly status and practices in one area (providing internet access) to push out other businesses in other areas (various internet based services). They SHOULD be getting charged under antitrust laws. They SHOULD be happy this is all they're seeing.

Before the FCC can pretend to offer up something for NN they need to kill off the USF.3 (well 2 now with the CL/QW merger) telcos in my area offer horrible net services. The each get $100+ per month from the USF to provide services to rural lines (of which, RC has 1200, CL has 900 and QW has 4000)My QW rep flat told me that the $75 they sell alarm loops for (so I can run data services on) is losing money because they are not billing the USF for it as well as the $50+ per customer average they get. Stop this greedy bank that we all pay into THEN start talking about NN.

I would love to see any <publicly funded> ISP be forced to unbundle and do line sharing. Any <privately> funded ISP (Yes, like me) to be left the hell alone. Why? Because I do not take public monies (None, 100% worked my ass off to build my company) and the publicly funded ones get basically free money. IMO any line that gets paid from the USF should be given to the end user for free (and yes I would do that if I were given USF monies, assuming the FCC would LET me. I know of a telco that asked the FCC/PUC to let them give away free service on all lines, cause they got $145+/mo per line.)

All the NN talk is worthless when the FCC still lets the telcos act just like Ma Bell did and pay them to do it. Colbert has a great skit summing up the merger/buyout debacles.

This is why you don't begin political negotiations by offering limp-dick compromises: Your enemies will still fight to further advantage themselves and your allies will lose morale. Instead, you polish your cudgel and get ready to crack skulls. After the carnage abates, what you end up with will probably be a compromise position, but it'll be the best one you could've achieved.

Nate, yours is a learned, but labored historical analogy to Queen Elizabeth's political machinations, me thinks, tantamount to showing off in the name of keeping you entertained. A middle way is a compromise effort, no matter who is leading the way forward, correct?

While I like the historical analogy, this is not a "middle way." Genachowski constantly calls it "status quo," and he's exactly right. The carriers still get to avoid being fully classified as carriers, and American citizens still see no true competition.

I think the opposite end of the spectrum shouldn't be considered just Title II re-classification (to merely correct the misconceptions of Bush's industry-flunkies), but instead a full-on take-back of the Internet by our elected government. Our tax dollars, military, and public universities created the Internet, so we should be able to take it all back. The Information Super Highway is just as important to our nation's prosperity and security as the National Highway System, and it should be controlled in the same way. Screw Ma Bell and the rest of the monopolists -- the American people paid for all the technology and infrastructure of the Internet several times over already, via taxes and monopoly rents. I don't see any valid reason to continue paying the monopoly rents of any dying industry. Let's just take it back NOW!